"[J]ust as a critical sensibility should have predicted, the right has indeed proven to be both relatively regressive and seemingly unstable. This right’s genesis in “law” rather than “politics” has not yielded the permanence or security or respect that law promises. Roe, conceived as a “right” so as to withstand the whims of hostile political opinion that would upset it, still seemingly hangs by a legal thread. The Court can broaden it, narrow it, uphold it, or overrule it. Meanwhile, and ironic ally, the activity it primarily protects—legal and safe abortion in the first trimester of an unwanted pregnancy—enjoys strong majoritarian political support. Rendering legal abortion a constitutional right, rather than an ordinary political one, may not have made it any more secure than it otherwise would have been. We have seemingly gained the regressive features of constitutionalizing this right, without enjoying the gain of security or stability that constitutionalism promises."
January 1, 1970